The Fifth Circuit dismissed most of the plaintiff's Family and Medical Leave Act case in Bryant v. Texas Dep't of Aging and Disability Services, holding that most claims were barred by state sovereign immunity and qualified immunity. But the court remanded the question whether the plaintiff's claim for monetary damages against her supervisor is barred by state sovereign immunity.

The plaintiff, Tammy Bryant, sued her employer, Texas Department of Aging and Disability Services, and her direct supervisor, Kim Littleton, for interfering with her self-care FMLA leave and for retaliating against her for taking FMLA leave. She sought reinstatement and monetary damages.

The Fifth Circuit dismissed most of Bryant's case. The court ruled that while Congress validly abrogated states' Eleventh Amendment immunity with respect to the FMLA's family-care provision, Nev. Dep't of Human Resources v. Hibbs, Congress did not validly abrogate with respect to the self-care provision. Coleman v. Court of Appeals of Maryland. As a result, the department had Eleventh Amendment immunity against Brant's self-care claims for monetary damages.

As to Bryant's claim for reinstatement, the court said that the Ex Parte Young exception (allowing plaintiffs to sue a state for prospective relief) did not apply to suits against state agencies; it only applies against state employees acting in their official capacities.

The court ruled further that Littleton enjoyed qualified immunity from Bryant's interference claims, because Bryant failed to show that Littleton violated clearly established law.

Finally, the court remanded Bryant's claim for monetary damages against Littleton. The court recognized that this "depends on the state's being the real party in interest" and left it to the lower court to work that out.

The court found that although Westchester Community College (WCC) is part of the state university system of New York (SUNY) that is entitled to Eleventh Amendment immunity, the community college is not similarly shielded. Essentially, the question is whether the community college is more like the state or more like a local government ("community") which is not entitled to Eleventh Amendment immunity. The court's rationale focused on the factor of the risk to the state treasury, finding it important that the state only contributes a fraction of WCC's budget, is not responsible for WCC's debts, and it is Westchester County that has the power to issue bonds and levy taxes to support WCC. The court also considered the issue of state control. There are ten board members of WCC: the state Governor appointed four, while the county appointed five, with one board member elected by the student body. Further, the court considered the laws creating WCC, finding the statutory framework indicates its separation from SUNY.

The opinion seems straightforward even as it is acknowledges the curvatures of the landscape on which it is written.

First, district courts have found that other SUNY community colleges are embraced by SUNY's sovereign immunity and the Second Circuit itself has found that the City University of New York is similarly entitled to sovereign immunity (even as the City of New York is not).

Second, the court notes that other circuits examining the question whether a particular stateʹs community colleges are entitled to sovereign immunity have "unsurprisingly" reached disparate conclusions, given that the conclusions are based on state-specific inquiries into those collegesʹ fiscal and governance structures.

Thus, having concluded that WCC is not entitled to Eleventh Amendment immunity, Carol Leitner's claim for a First Amendment violation can proceed directly against the community college, in addition to the WCC officials who are also defendants.

While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)

Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.

The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.

The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.

In a 26 page opinion today in Condon v. Haley, Judge Richard Mark Gergel held that South Carolina's same-sex marriage bans (by statute and state constitutional amendment) is unconstitutional.

Here is the gravamen of Judge Gergel's opinion:

This Court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional in Bostic.

Recall that the Fourth Circuit in Bostic v. Schaefer held that Virginia's same-sex marriage laws should be evaluated by strict scrutiny because marriage is a fundamental right; not surprisingly, the bans did not survive the standard. Recall also that the United States Supreme Court denied certiorari.

Moreover, Judge Gergel rejected the argument that "same-sex couples should not look to the courts to protect their individual rights but to the 'usually reliable state democratic processes' for relief" as the Sixth Circuit's very recent opinion upholding state prohibitions of same-sex marriage declared, by noting that the Fourth Circuit rejected this same argument.

Judge Gergel did, however, dismiss Governor Nikki Haley as a defendant. Judge Gergel noted that "simply being the state's chief executive sworn to uphold the laws is not sufficient" and there is "little evidence to support an argument that Defendant Haley has taken enforcement action or engaged in other affirmative acts to obstruct Plaintiffs' asserted fundamental right to marry. " Judge Gergel specifically distinguished Bowling v. Pence, in which a federal judge reversed a prior order dismissing the Governor of Indiana as a defendant after he took "affirmative action to enforce the statute."

Judge Gergel issued a temporary stay of the injunction until November 20, 2014.

The Ninth Circuit ruled this week in Lacano Investments v. Balash that state sovereign immunity barred a suit against a state official for his determination that streambeds claimed by the plaintiffs were owned by the State of Alaska. The court said that the relief plaintiffs requested--declaratory relief and an injunction prohibiting the defendants from claiming title to the lands beneath the waterways--was the funcational equivalent of quiet title, a claim that under Idaho v. Coeur d'Alene Tribe of Idaho does not fall within Ex parte Young.

The case arose when an Alaskan official determined pursuant to the federal Submerged Lands Act of 1953 that certain streambeds over which the plaintiffs claimed ownership were in fact owned by the State of Alaska. The plaintiffs said that they owned the streambeds pursuant to a federal land patent granted the year before Alaska became part of the Union. When the official then determined that the streambeds belonged to the state, the plaintiffs sued, seeking declaratory and injunctive relief.

Under Ex parte Young, the plaintiffs could sue a state official for injunctive relief and dodge state sovereign immunity under the Eleventh Amendment. But the Supreme Court limited Ex parte Young in Coeur d'Alene, holding that the Eleventh Amendment barred a suit that was "the functional equivalent of a quiet title action." That's because that kind of claim "implicate[d] special sovereignty interests"--the historical and legal importance of submerged lands to state sovereignty. The Coeur d'Alene Court explained that "if the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury."

The plaintiffs argued that Coeur d'Alene was distinguishable, because the plaintiffs in that case sought to divest the state of its title (and not, as here, the other way around), and because a ruling for the plaintiffs in Coeur d'Alene would have deprived the state of all regulatory power over the property (and not so here). The court didn't bite, however. The court also rejected the plaintiffs' argument that Coeur d'Alene is no longer good law. Instead, the court applied Coeur d'Alene, ruled that the plaintiffs' claim was quiet-title-like, and held that the claim was therefore barred by state sovereignty under the Eleventh Amendment.

The Veterans Day Off Bill, reintroduced by Congressperson Bruce Braley of Iowa this year would require employers with more than 50 employees to give any veteran Veterans Day off, with or without pay. The bill includes an exemption for cases in which the day off would negatively impact public health or safety, or cause significant economic or operational disruption.

The major concerns about the constitutionality of the bill are twofold.

First, there could be an equality challenge. Nonveterans could challenge the law as a denial of the equal protection component of the Fifth Amendment. Certainly the law would be making a classification between veterans and nonveterans. However, this classification receives receives the lowest level of scrutiny from the courts: the government would have the legitimate interest of "honoring veterans" and a single day off, that could be without pay, would most likely be reasonable. It would be similar to veterans preferences in government employment which have been held constitutional, even though they have a disparate negative impact on women, as in Personnel Administrator of Massachusetts v. Feeney, decided by the United States Supreme Court in 1979.

Second, there could be a challenge to Congressional power to require private employers to allow employees a day off. Requirements that private employers do not practice race or sex discrimination, or comply with wage and hour laws, or provide family medical leave, have all been held constitutional. This law would be similar to those laws, as well as the the federal law protecting employment for those serving in the military, the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Bill does not apply to employees working for state governments where the Eleventh Amendment could serve as a potential bar to lawsuits seeking to vindicate rights.

The Fourth Circuit's opinion in Bland v. Roberts addresses whether Sheriff Roberts violated the First Amendment rights of the six plaintiffs by terminating their employment in retailiation for their support of his opponent in an election, and whether Roberts has immunity. The court reverses in part the grant of summary judgment to the sheriff by the district judge.

As the panel notes, the applicable doctrine is a merging of public employee speech doctrine, especially their rights to speak as private citizens which was clearly the case here, and "the established
jurisprudence governing the discharge of public employees,
because of their political beliefs and affiliation," as in Elrod v. Burns (1976) and Branti v. Finkel (1980).

An important question for some of the plaintiffs was whether some of their actions "on Facebook" met the First Amendment threshold of "speech." The district court had concluded that “merely ‘liking’
a Facebook page was insufficient speech to merit constitutional
protection,” but the Fourth Circuit panel disagreed. Its discussion of Fabeook's "like" - - - citing the amicus brief of Facebook, Inc. and posts on the Facebook site such as "What is a Facebook Page?" - - - led to its conclusion that once one understands the nature of what one of the plaintiffs

did by
liking the Campaign Page, it becomes apparent that his conduct
qualifies as speech. On the most basic level, clicking on the
“like” button literally causes to be published the statement
that the User “likes” something, which is itself a substantive
statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose
page is being liked is unmistakable. That a user may use a
single mouse click to produce that message that he likes the
page instead of typing the same message with several individual
key strokes is of no constitutional significance.

Moreover, the importance of Facebook was clear, given that Sheriff Roberts "specifically
warned his employees not to support [his rival] Adams through Facebook." Roberts also seemingly specifically "threatened that Adams supporters would not be
reappointed."

Nevertheless, the Fourth Circuit panel found that three of the six plaintiffs did not present sufficient evidence to create a jury question. Additionally, the panel found that the defendant was entitled to qualified immunity given the state of the law and Eleventh Amendment immunity as to money damanges, but not on the issue of reinstatement.

Judge Ellen Lipton Hollander, a Maryland District Judge sitting by designation, wrote separately to dsisagree on the issue of qualified immunity on the state of the law.

The majority concludes that, at the relevant
time, “a reasonable sheriff could have believed he had the right
to choose not to reappoint his sworn deputies for political
reasons,” and, on this basis, it determines that
Sheriff Roberts is protected by qualified immunity with respect
to his discharge of [the three plaintiffs]. In my view, when
these deputies were discharged in December 2009, the law was
clearly established that a sheriff’s deputy with the job duties
of a jailer could not be fired on the basis of political
affiliation.

This case will most likely be cited and known for its finding of "like" on Facebook as speech. But in addition, with its interweaving First Amendment issues and its questions of qualified immunity, Eleventh Amendment and otherwise, this case could be the basis of an interesting in-class exercise - - - or even exam question - - - for ConLawProfs.

In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion. Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.

The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument. He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights. Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition. The argument that state funding "frees up" other money to provide abortions "extends too far."

The judge also found the equal protection argument had merit. By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification. The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny. In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.

Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.

The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court. Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.

Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003). As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising. Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing “the pervasive sex-role stereotype that caring for family members is women’s work.”

Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA. She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).

And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."

One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor. O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.

But one might also recall that before Justice Alito, there was nominee Harriet Miers. One wonders how she might have voted.

The plaintiffs had argued that Wilson II did not govern because it was a facial challenge of section 31, whereas the present action was an as-applied constitutional challenge, focused on higher education. The plaintiffs also argued that Prop 209 did not survive Grutter v. Bollinger (2003). Rejecting both of these contentions, the Ninth Circuit panel affirmed the district judge's conclusion that Wilson II did consider the context of higher education and that Grutter concerned the constitutionality of governmental choices regarding diversity but did not mandate those choices.

However, before reaching the equal protection claim, the panel considered - - - and rejected - - - the state defendants' argument that the Eleventh Amendment barred suit against them in federal court. The partial dissenting opinion by Judge Tashima disagreed on this point.

In a footnote, the panel opinion referenced Fisher v. Texas, stating that the Supreme Court "appears poised to reconsider whether race-based affirmative action programs are even permissible at all."

The Supreme Court's divided opinion in Coleman v. Court of Appeals of Maryland, issued today, resuscitates the convoluted doctrine that resides at the intersection of the Eleventh Amendment and the Fourteenth Amendment. As Justice Scalia, concurring, phrased it:

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense.

The facts of the case are simple: Coleman was employed by the Court of Appeals of the State of Maryland and requested sick leave; he was informed he would be terminated if he did not resign. Coleman then sued in federal court, arguing that his employer violated the "self care" provision of the Family Medical Leave Act (FMLA).

The "family leave" provision of the FMLA was held applicable against the states in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), authored by CJ Rehnquist. But here the plurality distinguished the sex-role stereotyping that Congress found states had perpetrated regarding family leave. Instead, the self-care provision had a lack of "a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations."

The Eleventh Amendment, passed to overule Chisholm v. Georgia, has produced a tortured - -- and many argue essentially incorrect - - - doctrine allowing states to interpose sovereign immunity against civil rights suits by their own citizens.

This is complicated by Congressional power to abrogate a state’s 11th Amendment immunity pursuant to its §5 14th Amendment enforcement power in some circumstances. The Congressional intent to abrogate must be unmistakenly clear and the Congressional act must be a valid exercise of power under section 5 of 14th Amendment, meaning that there is congruence and proportionality in light of Supreme Court precedent and there must be a finding that states qua states need to be remedied.

In Coleman, Kennedy - - - writing for a plurality - - - held that the self-care provision was not a valid aborgation of the state's sovereign immunity. Note that the specific provision, not entire FMLA, is being subject to this requirement. Kennedy wrote that the "evidence did not suggest States had facially discriminatory self-care leave policies or that they administered neutralself-care leave policies in a discriminatory way. And there is scant evidence in the legislative history of a purported stereotype harbored by employers that women take selfcare leave more often than men."

Justice Ginsburg, joined by three other Justices, dissented and argued that even accepting the Court's view of the scope of Congress’ power under §5 of the 14th Amendment, the self-care provision "validly enforces the right to be free from gender discrimination in the workplace." Further, she argued that the plurality "gets it wrong in concluding that “[o]nly supposition and conjecture support the contentionthat the self-care provision is necessary to make the family- care provisions effective.”" Instead, self-care leave "is a key part of Congress’ endeavor to make it feasible for women to work and have families."

Ginsburg's argument did not prevail and thus states escape another provision of federal anti-discrimination law given the Court's interpretation of the Eleventh Amendment.

Chisholm v. Georgia (1793) is often considered the first important constitutional case rendered by the United States Supreme Court, predating Marbury v. Madison by a decade.

Certainly the importance of Chisholm v. Georgia is mitigated by the Eleventh Amendment, specifically passed to "overrule" the opinion, although to what extent remains controversial in Eleventh Amendment doctrine even now. On some views, the Eleventh Amendment adopts Justice Iredell's dissent in Chisholm v. Georgia.

ConLawProf John Orth has written extensively on this history, including in an excellent 1994 essay "The Truth About Justice Iredell's Dissent in Chisholm v. Georgia," 73 North Carolina Law Review 255.

But less careful researchers will be more likely to run across Iredell's dissent marketed as "general fiction" with the author relegated to "No bio available." The text, free elsewhere, is available as an eBook for 99¢.

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution

requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.

Today (or next week) might be a good time to discuss the relationship of the Constitution's text and its interpretation, especially given the popular rhetoric concerning "strict constructionism." A possible prompt might be the Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In divided opinions, the Court has repeatedly stated it will not engage in "blind reliance" upon the text of the Constitution regarding the Amendment, see e.g., Alden v. Maine (1999).

In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011). The judge enjoined the Kansas state defendants from any further enforcement or reliance on athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.

The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.

Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights. The judge found there was a substantial likelihood of success on both of these claims.

First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment. The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity. Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”

As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict. The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded.

Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan. Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional." Thus, the judge focused on the First Amendment right of association.

Discussed in both of the Planned Parenthood claims was the legislative intent of the statute. Was the intent of the statute directed at Planned Parenthood? The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute. The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:

Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor voteof the session.

Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.” The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.

Certainly there is - - - and will be - - - much to say about Justice David Souter and his legacy on the United States Supreme Court. [Update:e.g., Linda Greenhouse in NYT here; Kermit Roosevelt in Slate here; The Nation here].

One place to start is the book David Hackett Souter by Tinsley Yarborough, published by Oxford University Press in 2005. Subtitled "Traditional Republican on the Rehnquist Court," the book contends that despite Souter's reputation as a disappointment to traditional Republicans, Souter is indeed both traditional and Republican in his life and his jurisprudence.

Regardless of politics, Souter's reputation amongst many ConLaw profs and students is as a erudite historian. This is exemplified by many of his opinions in Eleventh Amendment cases. In Seminole Tribe of Florida v. Florida, 517 US 44 (1996), Souter's lengthy dissenting opinion, joined by Ginsburg and Breyer, is an extended exegesis on the history of the Eleventh Amendment. Souter concludes that "neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III" and his nearly 40 page argument is as thorough as one can find anywhere in the United States reporter. Interestingly, while Souter is often set against the conservative originalists, the Eleventh Amendment context displays Souter's strong originalist and historical fealty. In his nearly as long dissenting opinion in Alden v. Maine, 527 U.S. 706 (1999), in which the majority found that the FLSA could not be applied to the states under the Eleventh Amendment, Souter remarks that state sovereignty has all of the hallmarks of a “natural” right - - - “a universally applicable proposition discoverable by reason.” Id. at 716.

Scholars have taken up Souter's project in Eleventh Amendment scholarship. In Statehood As The New Personhood: The Discovery Of Fundamental “States' Rights," 46 William and Mary Law Review 213 (2004), Timothy Zick extended Souter's observation about the "natural" rights of states into an article arguing that the Court has extrapolated individual rights such as those flowing from the Bill of Rights and Fourteenth Amendment into rights that States possess. Zick contends that

fundamental “states' rights,” unlike the sovereign rights of existence, separateness, participation, and interpretive independence, are not contained in any constitutional bill of rights for states: They are, like individuals' fundamental rights to such things as “privacy” and “liberty,” judicial extrapolations from the penumbras of these basic sovereign rights. This, among other things, distinguishes fundamental “states' rights” from both the power calculus version of “states' rights” and the idea that the Constitution itself preserves certain minimal rights of state sovereignty. As a result of recent Court decisions, states now enjoy fundamental rights to intimate association, equality, physical autonomy, mental autonomy, and due process. States, therefore, like persons, enjoy a measure of liberty in ordering and arranging their intimate affairs. With respect to immunity from lawsuits, states are entitled to be treated as more than second-class sovereigns, just as the Constitution's equality guarantees prohibit government from creating lower-status persons.

Two other articles bear reading. Recently published, The Supreme Court's Confusing State Sovereign Immunity Jurisprudence, 56 Drake L. Rev. 253 (2008) by Scott Fruehwald is essentially an argument that Souter is correct - - - at least for the most part. Much of Fruehwald's argument relies and quotes Souter's opinions. However, Fruehwald argues that in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, (2003), the Court wrongly allowed Congress to apply FMLA to the states, resulting in a remedy that is not congruent and proportional to the evil. He asks "how is requiring twelve weeks of unpaid leave congruent and proportional to the evil of discrimination against women on the basis of pregnancy?" Souter joined that Court's (correct to my mind) opinion in that case, although Souter concurred specially to make it clear he did not concede the position expressed in his previous dissenting in views in Seminole Tribe. Additionally, Andrew Coan's essay, Text As Truce: A Peace Proposal For The Supreme Court's Costly War Over The Eleventh Amendment, 74 Fordham L. Rev. 2511 (2006), seeks to not "take sides" in the warring opinions regarding the Eleventh Amendment but to direct the contestants back to the text of the Eleventh Amendment. Yet given his conclusion that Seminole Tribe was incorrectly decided and should (like similar cases) be overruled, he too is arguing that Souter is correct.

Of course, Souter's legacy extends far beyond Eleventh Amendment jurisprudence. But in many ways, his work on the Court's Eleventh Amendment cases evidences his well-known historical expertise.

Even if law students comply with Justice Scalia's widely reported remark last year admonishing them not to enroll in waste-of-time courses such as "Law and Poverty," it might not be sufficient to insulate students from the legal problems of poverty - - - at least if ConLawProf Stephen Loffredo has his way.

As part of a Symposium entitled "What Is the Place of Poverty Law in the Law School Curriculum?: Looking Back and Planning for the Future," Loffredo confronted the "place" of poverty in a traditional Constitutional Law Structures course. In his article, Poverty, Inequality, and Class In The Structural Constitutional Law Course, 34 Fordham Urb. L.J. 1239 (2007), Loffredo admits that the relevance of poverty issues are more readily apparent in the "rights" portion (or separate course) of Constitutional Law courses, but argues that while not always apparent, legal issues of poverty and economic inequality are integral to constitutional structures courses.

Most helpfully, Loffredo offers some very specific suggestions about integrating issues of poverty and class inequality. His discussion of "the founding" and judicial review principles in Marbury v. Madison and after is especially noteworthy. For example, Loffredo highlights a possible area of discussion:

students might be asked to consider whether the counter-majoritarian critique operates in the same way when litigants without access to economic power, and therefore little access to the political process, seek assistance from the courts. If people living in poverty lack a democratically fair share of political access--if the ordinary channels of civic and political engagement are not open to them, so that courts are the only meaningful avenue or effective point of access--then perhaps the availability of judicial redress and the institution of judicial review in those cases does not deviate from democratic practice at all, but serves as a corrective that enhances democracy.

More provocative, perhaps, is Loffredo's suggestions regarding the dormant commerce clause. Loffredo candidly states that a notion that "the Commerce Clause has anything to say about treatment of poor people may come as a surprise to students," and perhaps some ConLawProfs. Here, Loffredo's suggestion is not so much about directing student discussion as about including different material. He suggests that " a key, though largely neglected," dormant commerce clause case, Edwards v. California, 314 U.S. 160 (1941), "speaks eloquently to the issues of poverty, inclusion, and national community, and provides a window into the shifting judicial understandings of poor people and the nation's responsibility for the economic well-being of its citizens." His extended argument for the then-relevance and the continued relevance of Edwards is quite convincing.

Loffredo also has suggestions for the Eleventh Amendment, Congressional power under section 5 of the Fourteenth Amendment, and even Martin v. Hunter's Lessee. These are all worth considering. Most of Loffredo's suggestions do not require retooling the Syllabus, but offer thoughts for teaching the structural dimensions of Constitutional Law to include poverty law issues.

These suggestions may be more timely now than when written. In some of the article's introductory passages, Loffredo observes that the norm has become obscuring economic inequality and class issues throughout Constitutional Law and the law school curriculum. Could it be that these observations are becoming less true at the beginning of 2009 given various changes in the political and economic climate? All the more reason to consider Loffredo's suggestions.